SCOTUS Holds that Class Action Waivers in Employment Contracts Must be Enforced

By Stephen A. Fogdall

In a landmark decision, the U.S. Supreme Court has ruled 5-4 that arbitration clauses in employment contracts requiring individual dispute resolution procedures and prohibiting class actions and other collective litigation procedures must be enforced under the Federal Arbitration Act.  The Court rejected the position taken by the National Labor Relations Board and some private plaintiffs that employees’ right to engage in “concerted activities” for their “mutual aid or protection” recognized in Section 7 of the National Labor Relations Act makes such class and collective action waivers unenforceable.  The Court issued its ruling in three consolidated cases:  Epic Systems Corp. v. Lewis, Ernest & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc.  In the latter case, the Fifth Circuit reversed the NLRB’s determination that the employer violated Section 7 by including an individual arbitration clause in its employment contract.  In the former two cases, the Seventh and Ninth Circuits respectively adopted the NLRB’s position and allowed private plaintiffs to pursue collective actions under the Fair Labor Standards Act notwithstanding that they had agreed to individual arbitration clauses in their employment contracts.

The Court, in a majority opinion written by Justice Gorsuch, began its analysis by noting that arbitration clauses in employment contracts fall squarely within the FAA’s command that all arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”  The Court then rejected the argument that the final clause of this command, called the “savings clause,” implicates Section 7 of the NLRA.  The Court explained that the savings clause permits a party to oppose arbitration based on defenses, such as fraud in the inducement or duress, that might apply to “any contract.”  However, the savings clause does not allow a court to refuse to enforce an arbitration agreement based on defenses that specifically target arbitration.   The Court reasoned that a putative defense to enforcement of an individual arbitration clause on the theory that such a clause violates employees’ right to engage in “concerted activities” under Section 7 is precisely the type of defense that is not preserved by the savings clause because it specifically targets the alleged illegality of such clauses in the employment setting.  It is, by definition, not a defense of general applicability.

The Court likewise rejected the argument that there is a “conflict” between the FAA and Section 7 of the NLRA such that Section 7 overrides or impliedly repeals the FAA to the extent the FAA would require enforcement of an individual arbitration clause in an employment contract.  The Court held that there could be no conflict between Section 7 and the FAA because “Section 7 doesn’t speak to class and collective action procedures” and contains no “hint about what rules should govern the adjudication of class or collective actions in court or arbitration.”  The Court reasoned that “[u]nion organization and collective bargaining in the workplace are the bread and butter of the NLRA,” and it is “more than a little doubtful that Congress would have tucked into the mousehole” of Section 7 “an elephant that tramples the work done by” the FAA and other laws governing “the particulars of dispute resolution procedures in Article III courts or arbitration procedures.”

Lastly, the Court rejected the argument that the NLRB’s position was entitled to deference under the Chevron doctrine (which requires courts to defer to a federal agency’s interpretation of the statute it administers in certain circumstances).  The Court explained that Chevron was inapplicable because the NLRB did not confine itself to interpreting NLRA, the statue it administers, but rather “sought to interpret this statute in a way that limits the work of a second statute,” the FAA.  If an agency’s “reconciliation” of allegedly competing statutes were subject to deference under Chevron, then “[a]n agency eager to advance its statutory mission, but without any particular interest in or expertise with a second statute, might (as here) seek to diminish the second statute’s scope in favor of a more expansive interpretation of its own,” thus “bootstrapping itself into an area in which it has no jurisdiction.”

The decision is a significant win for employers seeking to limit the costs and risks of class and collective litigation by employees.

Chief Justice Roberts and Justices Kennedy, Thomas and Alito joined Justice Gorsuch’s majority opinion.  Justice Ginsburg wrote a dissenting opinion, joined by Justices Breyer, Sotomayor and Kagan.  The Schnader firm submitted an amicus brief in support of the enforceability of class action waivers in employment contracts in all three cases on behalf of the Mortgage Bankers Association and several state mortgage lending associations.

Jesinoski v. Countrywide Home Loans: The U.S. Supreme Court Seems Ready to Hold that a Borrower’s Right of Rescission Under TILA Need Only be Exercised by Timely Notice, not a Lawsuit

By Stephen A. Fogdall

On November 4, 2014, the U.S. Supreme Court heard argument in Jesinoski v. Countrywide Home Loans, the case that will decide whether a borrower can timely exercise the right of rescission under the Truth in Lending Act simply by sending written notice of intent to rescind to the creditor within the three-year period set forth in the statute, or whether the borrower must instead file a lawsuit within that time period.  The Third, Fourth and Eleventh Circuits have held that written notice to the lender alone is sufficient to preserve the rescission claim. The First, Sixth, Eighth, Ninth and Tenth Circuits have held that filing a lawsuit within the three-year period is required. (You can find more on this issue here and here.)

At the argument, the creditor’s counsel focused heavily on TILA’s statement that the borrower’s right to rescind “shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first,” even if the forms and disclosures required by TILA were never delivered. In an earlier decision, Beach v. Ocwen Federal Bank, the Court had held that this provision “limits more than the time for bringing a suit, by governing the life of the underlying right [to rescind] as well.” The creditor’s counsel argued that, under Beach, a borrower who failed to file a lawsuit to obtain a rescission within three years would no longer have any right to rescind at all, regardless of whether the borrower had sent the creditor a notice within the three-year period. Thus, the failure to file a lawsuit should mean that the claim for rescission is extinguished.

Justices Ginsburg, Breyer, Sotomayor and Kagan were openly skeptical. They repeatedly returned to the fact that TILA itself refers only to written notice as the trigger for exercising the right to rescind. TILA states that “the obligor shall have the right to rescind the transaction until midnight of the third business day following consummation of the transaction,” or after the required disclosures and rescission forms are delivered by the creditor, whichever is later, simply “by notifying the creditor . . . of his intention to do so.” These four Justices seemed convinced that, given this language, a borrower’s right of rescission is exercised simply by sending such a notice. While litigation might ultimately be necessary to resolve whether the borrower in fact has a valid basis to rescind, filing such litigation is not necessary to preserve the right. Justice Ginsburg pointed out that in Beach the borrowers had never sent the creditor a notice of intent to rescind within the three-year period. Therefore, Beach could not have held that a notice of intent to rescind is insufficient to preserve the borrower’s rescission right.

In contrast to these four Justices, Justices Scalia and Alito emphasized that a rescission, by definition, requires that the parties be returned to where they were before the transaction was consummated. If the borrower lacks the ability to return the funds, then the rescission cannot be effectuated, regardless of whether the borrower sent the creditor a notice of intent to rescind. Thus, it seems, mere notice by the borrower could not be sufficient to accomplish a rescission. The implication, presumably, is that only a lawsuit could achieve that result, and thus filing a lawsuit within the three-year period is necessary.

The positions of Chief Justice Roberts and Justice Kennedy (the only other Justices who spoke during the argument) are much more difficult to read. Justice Kennedy’s questions largely dealt with situations in which the creditor disputes the borrower’s right to rescind. Some of his questions seemed sympathetic to the position apparently endorsed by Justices Ginsburg, Breyer, Sotomayor and Kagan — that litigation might be necessary to resolve the dispute, but is not needed to preserve the right to rescind itself. However, he also focused on an issue that these four Justices seemed not to be concerned with, namely, how long after giving notice the borrower can wait before bringing a lawsuit to rescind. The creditor’s counsel argued that one advantage of requiring the filing of a lawsuit to preserve the rescission right is that it clearly limits the time in which such a suit can be brought to three years from the date the loan is consummated, whereas the borrower’s position that notice is sufficient seems to leave that question unanswered. Justice Kennedy appeared to think that this consideration had some force.

Chief Justice Roberts made a single comment during the argument. At one point, the creditor’s counsel was attempting to find support for his position in a provision of TILA which provides that in “any action in which it is determined that a creditor has violated this section, in addition to rescission the court may award” other relief available under TILA, such as actual and statutory damages. The Chief Justice remarked that “you’re putting an awful lot of weight on a tiny, one-sentence provision,” and that “it would be very odd if that’s where Congress decided to place” a requirement that the borrower must bring a lawsuit within the three-year period.

Thus, at least five members of the Court (Justices Ginsburg, Breyer, Sotomayor and Kagan, and Chief Justice Roberts) seemed skeptical, to one degree or another, of the creditor’s position that timely notice alone is insufficient to preserve a borrower’s right to rescind under TILA. We will report on the outcome as soon as the case is decided.

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